Tuesday, March 17, 2009

"We Have Met Madoff and He is Ours"

Posted by Jeff Lipshaw

I'm speaking at a University of Dayton Law School symposium entitled "Fallout from the Bailout" on Friday, March 20, and have posted on SSRN the essay on which the talk is based:  Disclosure and Judgment:  "We Have Met Madoff and He is Ours." 

This short essay addresses the role of securities regulation of mortgage-backed in the present financial crisis. While there is certainly a role for securities regulators to play in curing systemic flaws that contributed to the present situation (for example, the regulation of credit rating agencies), the federal system is primarily based on disclosure, not the merit of the underlying security. My view is that the problem here is not the availability of information in the markets for these securities, now or in the past, but judgments made with respect to that information. To paraphrase Kant, judgment without information is empty; information without judgment is blind. Information without judgment gives us bubbles; judgment without information leaves us at the mercy of Madoffs.

In short, I'm a "more disclosure regulation" skeptic, at least as to these securities.  Following the dictum that philosophers think very deeply about things that are perfectly obvious to most people, this essay explains why I'm a skeptic.

http://lawprofessors.typepad.com/legal_profession/2009/03/we-have-met-madoff-and-he-is-ours.html

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Comments

Go get 'em, Jeff, and thanks for letting us know. I know there is a place for full disclosure and letting the market work, but I feel there are lots of other places where information without true regulation or limitation is not enough. I know the analogy is not exact, but we parents of teenagers do not feel we are doing our parental oversight job just by getting all the truth out on the table. We have to impose limits too. At some point the overreliance on information without the judgment you mention reminds me of those parents who sponsor at-home drinking parties for their kids (recall your post on one such in Indianapolis that made the press); yes that is one solution, but it seems a little like throwing up one's hands instead of doing the hard job of parenting and taking the lumps. Regulators need to regulate sometimes, not just prod disclosure.
ALAN

Posted by: Alan Childress | Mar 17, 2009 8:01:46 PM

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